Social Media Checks

SOCIAL MEDIA CHECKS – POWERFUL SCREENING TOOL OR LEGAL MINEFIELD?

Australians spend an average 22 hours per week on social media, that’s as much time as many young club employees spend at work. With social media now such an intrinsic part of the lives and identities of our young people, it’s understandable that employers are increasingly taking note of this important information source during recruitment.

While social media screening is a worthwhile activity during recruitment, helping recruiters to determine whether a person will be a ‘good fit’ for their organisation, from a legal perspective, basing employment decisions solely on a person’s social media profile, can be a risky business.

From a hospitality recruiters perspective, Facebook pictures of a candidate drunk in the gutter or playing drinking games, may be a deal breaker when it comes to bar work for example, without the benefit of a range of other information which may exclude the candidate for other reasons, deciding not to hire someone based entirely on their social media presence, can be a legal minefield.

So how do you go about the process of conducting social media checks legally and ethically?

The legalities of conducting social media checks

While conducting social media checks is useful as a means by which to obtain a piece of the overall picture, this should not be the only screening method used. Information influencing employment decisions should be considered in the following order of importance:

  1. Criminal History, if applicable to the fundamental duties of the role.
  2. Experience and qualifications.
  3. Reference checks with previous employers
  4. Social Media presence

Some employers ask for access to the private social media pages of Candidates and employees so that activity can be more closely monitored. However, this is not recommended. Obtaining information on potential and current employees in this way may be a breach of the Privacy Act 1988 (Cth), might lead to an adverse action claim under the Fair Work Act 2009 (Cth), and may even equate to misleading or deceptive conduct in breach of the Australian Consumer Law.

Any employment related decision with regard to social media content can leave an employer liable under anti-discrimination law if the employer cannot demonstrate that information sourced from social media (such as race, religion or sexual preference) had no bearing on the organisation’s decision in relation to the applicant.

Organisations must also be aware of the terms of the social media sites they are exploring. Some sites prohibit unauthorised use of the information.

The key to these risks, is to obtain written consent from the job applicant, and to only gather information from the social media site with their full knowledge. Organisations should also keep a detailed record of the information used in the recruitment process.

In summary, social media checks are a worthwhile addition to your employee screening arsenal, particularly when hiring younger people but, as with any form of screening, they need to be carried out in a way that won’t come back to bite you later.

Employment Screening Australia is a leading expert on all forms of pre-employment background checking. We can advise you on the best way to conduct Social Media checks in accordance with legal requirements. Contact us any time on 0434 886 466 or email admin@employmentscreeningaustralia.com.au.

Employee Screening – It’s Not a Game.

With the recent tragic happenings in Europe and elsewhere, it is a good time to touch on the issue of terrorism financing, gaming and employee screening measures for people working in the gaming industry.

The Anti-Money Laundering and Counter Terrorism Financing Rules Instrument 2007, administered by AUSTRAC specifies that it is imperative for gaming manufacturers and service providers to implement rigorous employee background screening when hiring staff to work in and around gaming. Large fines can ensue if any employer is found to have failed in this regard.
But what does the term ‘rigorous’ mean when it comes to screening potential candidates? There is unfortunately no guidance within the AML-CTF Rules as to specifically what is required when it comes to probity checking.

With so many screening options available such as police checks, employment history and reference checking, what should gaming recruiters be doing to ensure their screening procedures are meeting AUSTRAC requirements?

Police Checks

A criminal check will uncover a range of convictions for drug usage or trafficking, theft, breaking and entering and fraud as well as any terrorism related convictions. It is commonly accepted as the most robust form of employee screening currently available. But as a point in time check, it isn’t entirely foolproof. Police checks, should be an intrinsic part of any screening regime, but they should be combined with other screening activities as well.

Employment History Checks

As illustrated by high profile cases over past years, falsification of employment history is a growing problem across a range of industries.

Embellishment of the facts is common among job seekers, as revealed by Veda’s research of more than 1,000 adverse findings of verification of employees moving to new jobs in the 12 months to 30 June 2014.

The data shows that 27 per cent of dishonest job seekers are providing potential employers with misleading information about their employment history.

A professionally undertaken employment history check will highlight any unexplained gaps in a person’s employment history. These gaps or discrepancies are often red flags, indicating a less than glowing employment record.

Visa/Work Entitlement Checks

The Veda research found that dishonesty in relation to Australian work entitlement came a close second to falsified employment histories with 26 per cent of falsifications coming from this due diligence category.

It is not longer a defence for employers to claim they were not aware of the employee’s work entitlement status. Employers face heavy fines for failing to properly ensure employees are Visa checked.

VEVO checks can be conducted quickly and easily and could save your organisation tens of thousands in fines.

Reference checks

While some employers refuse to give references for legal reasons, reference checks should not be discounted as an important intelligence gathering exercise. When conducted properly, reference checks can be an excellent predictor of future work performance.

A thorough reference checking program will involve measures to weed out false referees and will seek to obtain information from those best placed to give feedback on the candidate’s work performance.

The way forward

Employment risk mitigation is no longer recommended just when hiring. Periodic checks should become part of an organisation’s ongoing due diligence process to confirm employees’ criminal, work rights or financial status have not changed.

Just as businesses currently insure against property damage and other forms of risk, the area of risk mitigation in recruitment is often overlooked.

As a minimum, gaming employers should be conducting police checks and considering at least one of the above additional check types when recruiting new staff.

ESA can conduct a wide range of pre-employment checks. Contact us today to find out how we can help.

It’s Important To Check References

TIP 1: A Reference Check Today Will Save You Trouble Tomorrow

Don’t take a written reference on face value. Anyone can produce a plausible but completely bogus written reference. Employment Screening Australia’s reference verification involves TWO or more verbal reference checks using the following methodology:

Ask for a landline rather than a mobile number. This way you know that you’re speaking with the office of the candidate’s previous employer and not just one of their friends or colleagues. This also ensures that the referees you are speaking to are still employed by the candidate’s previous employer.
Make sure you have the candidate’s permission to speak with the referee about them. This seems like a no brainer but there are times when a candidate will put down a previous employer hoping that you won’t call.
Confirm basic details such as the position title, the period they were employed and their level of experience.
Always ask open-ended questions, so the referee must elaborate, rather than simply answering yes or no.
Ask about the candidate’s reliability, punctuality, attendance record, sociability, attention to detail, time management skills, key strengths, possible areas where improvement could be made etc.
Ask the referee why the candidate left their employment. Document the referee’s responses for later comparison with the key selection criteria.
Use the adage ‘there is more in what is not said than in what is’. Listen carefully for what the referee doesn’t say about the candidate. This omission could be intentional, if it is an area where your candidate doesn’t excel.
Be aware that in cases where the candidate is still employed, the referee may give them a good reference just to be rid of them. This is where speaking with previous employers is an advantage.
Ask the referee if they would re-employ the candidate, given the opportunity. Their reaction and response to this question will reveal a lot.
There is no point going through the motions when it comes to reference checks. There is a lot of valuable information to be gained from doing reference checks if they are done properly. Using a professional screening service like Employment Screening Australia for reference checks can ensure the job goes to the right person. Find out more about our professional reference verification service.

Visit us next week when we talk about the benefits of researching a job candidate’s online presence.

Things Employers Should Know About Criminal History Checks

So you’ve decided to introduce mandatory criminal history checks for all new and existing employees. Great idea! Police Checks are a good risk mitigation measure and your insurance broker will give you a gold star. But before you start drafting up your new policies and sending out memos to staff, here are a few things you should know to prevent nasty discrimination claims further down the track.

Employees and applicants should be made aware of their right not to disclose criminal history information subject to Spent Convictions legislation which prohibits the release of criminal history information older than 10 years unless the conviction is directly relevant to a job role involving working with children or vulnerable people or the conviction was serious enough to warrant a lengthy term of imprisonment exceeding 30 months. (I’ll be writing more on spent convictions in the next blog). Advertisements and job information for a vacant position should clearly state whether a police check is a requirement of the position. If so, the material should also state that people with criminal records will not be automatically barred from applying (unless there is a particular requirement under law). Police checks can only be conducted in Australia with the written consent of the job applicant or current employee.

Information about a person’s criminal record must be stored in a secure, private and confidential manner and used only for the purpose for which it is intended. Changes to privacy laws in 2014 will see large penalties applying to anyone not complying with this. The relevance of a job applicant or current employee’s criminal record should be assessed on a case-by-case basis. A criminal record should not generally be an absolute bar to employment but it can be considered an acceptable reason for exclusion if it can be shown that the nature of the offence is linked with the essential requirements of the role. A fraud conviction relating to theft of money through embezzlement would naturally be a good reason to exclude someone from a position handling the company books or cash handling for example.

A good starting point for determining whether a person should be excluded or employed based on a criminal record would be to determine the inherent requirements of the role and the circumstances under which essential duties are carried out. If an employer takes a criminal record into account in making an employment decision, in most cases the employer should give the job applicant or employee a chance to provide further information about their criminal record including, if they wish, details of the conviction or offence, the circumstances surrounding the offence, character references or other information, before determining the appropriate outcome in each case.

If criminal record information is considered relevant, an employer should have a written policy and procedure for the employment of people with a criminal record which can be incorporated into any existing equal opportunity employment policy covering recruitment, employment and termination.If criminal record information is considered relevant, an employer should train all staff involved in recruitment and selection on the workplace policy and procedure when employing someone with a criminal record, including information on relevant anti-discrimination laws. The essential or inherent requirements of a job should be determined prior to advertising the vacancy so that recruiters are better prepared to deal with applications from those with a criminal record. Under the AHRC Act an employer needs to show not only that they have determined what are the inherent requirements of a job, but also that they have considered whether an individual job applicant or employee meets these requirements. For more information go to http://www.humanrights.gov.au/publications/human-rights-record

Please feel free to comment or email me with any questions you might have on this topic at Natalie@employmentscreeningaustralia.com.au